(1) The words and
phrases used in this rule have the same meaning as given to them in ORS 36.110 and
36.234.

(2) Nothing
in this rule affects any confidentiality created by other law. Nothing in this rule
relieves a public body from complying with the Public Meetings Law, ORS 192.610
to 192.690. Whether or not they are confidential under this or other rules of the
agency, mediation communications are exempt from disclosure under the Public Records
Law to the extent provided in ORS 192.410 to 192.505.

(3) This
rule applies only to mediations in which the agency is a party or is mediating a
dispute as to which the agency has regulatory authority. This rule does not apply
when the agency is acting as the “mediator” in a matter in which the
agency also is a party as defined in ORS 36.234.

(4) To the
extent mediation communications would otherwise be compromise negotiations under
ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as
provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary
in section (9) of this rule.

(5) Mediations
Excluded. Sections (6)-(10) of this rule do not apply to:

(a) Mediation
of workplace interpersonal disputes involving the interpersonal relationships between
this agency’s employees, officials or employees and officials, unless a formal
grievance under a labor contract, a tort claim notice or a lawsuit has been filed;
or

(b) Mediation
in which the person acting as the mediator will also act as the hearings officer
in a contested case involving some or all of the same matters;

(c) Mediation
in which the only parties are public bodies;

(d) Mediation
in which two or more public bodies and a private entity are parties if the laws,
rule or policies governing mediation confidentiality for at least one of the public
bodies provide that mediation communications in the mediation are not confidential;

(e) Mediation
involving 15 or more parties if the agency has designated that another mediation
confidentiality rule adopted by the agency may apply to that mediation; or

(6) Disclosures
by Mediator. A mediator may not disclose or be compelled to disclose mediation communications
in a mediation and, if disclosed, such communications may not be introduced into
evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the
parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation
communication may be disclosed or introduced into evidence in a subsequent proceeding
as provided in subsections (c)-(d), (j)-(l) or (o)-(p) of section (9) of this rule;
or

(7) Confidentiality
and Inadmissibility of Mediation Communications. Except as provided in sections
(8)–(9) of this rule, mediation communications are confidential and may not
be disclosed to any other person, are not admissible in any subsequent administrative,
judicial or arbitration proceeding and may not be disclosed during testimony in,
or during any discovery conducted as part of a subsequent proceeding, or introduced
as evidence by the parties or the mediator in any subsequent proceeding.

(8) Written
Agreement. Section (7) of this rule does not apply to a mediation unless the parties
to the mediation agree in writing that the mediation communications in the mediation
will be confidential and/or nondiscoverable and inadmissible. If the mediator is
the employee of and acting on behalf of a state agency, the mediator or an authorized
agency representative must also sign the agreement. The parties’ agreement
to participate in a confidential mediation must refer to this mediation confidentiality
rule.

AGREEMENT TO PARTICIPATE
IN A CONFIDENTIAL MEDIATION

The Oregon
Housing and Community Services and the parties to the mediation agree to participate
in a mediation in which the mediation communications are confidential and/or nondiscoverable
and inadmissible to the extent authorized by OAR 813-004-0001(7) and this agreement.

This agreement
relates to the following mediation:

To the extent
authorized by OAR 813-004-0001(7), mediation communications in this mediation are:
(check one or more)

___
Confidential and may not be disclosed to any other person.

___
Not admissible in any subsequent administrative proceeding and may not be disclosed
during testimony in, or during any discovery conducted as part of a subsequent administrative
proceeding, or introduced as evidence by the parties or the mediator in any subsequent
administrative proceeding.

___Not
admissible in any subsequent administrative, judicial or arbitration proceeding
and may not be disclosed during testimony in, or during any discovery conducted
as part of a subsequent administrative, judicial or arbitration proceeding, or introduced
as evidence by the parties or the mediator in any subsequent administrative, judicial
or arbitration proceeding.

Name of Agency:
Oregon Housing and Community Services

Signature
of OHCS’s authorized representative (if OHCS is a party)

____________________________________________
Date ________

Signature
of OHCS employee acting as the mediator (if OHCS is mediating the dispute)

____________________________________________
Date ________

Name of party
to the mediation

____________________________________________

Signature
of party’s authorized representative

____________________________________________
Date ________

Name of party
to the mediation

____________________________________________

Signature
of party’s authorized representative

____________________________________________
Date ________

(9) Exceptions to
confidentiality and inadmissibility.

(a) Any statements,
memoranda, work products, documents and other materials, otherwise subject to discovery
that were not prepared specifically for use in the mediation are not confidential
and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any mediation
communications that are public records, as defined in ORS 192.410(4), and were not
specifically prepared for use in the mediation are not confidential and may be disclosed
or introduced into evidence in a subsequent proceeding unless the substance of the
communication is confidential or privileged under state or federal law.

(c) A mediation
communication is not confidential and may be disclosed by any person receiving the
communication to the extent that person reasonably believes that disclosing the
communication is necessary to prevent the commission of a crime that is likely to
result in death or bodily injury to any person. A mediation communication is not
confidential and may be disclosed in a subsequent proceeding to the extent its disclosure
may further the investigation or prosecution of a felony crime involving physical
violence to a person.

(d) Any mediation
communication related to the conduct of a licensed professional that is made to
or in the presence of a person who, as a condition of his or her professional license,
is obligated to report such communication by law or court rule is not confidential
and may be disclosed to the extent necessary to make such a report.

(e) The parties
to the mediation may agree in writing that all or part of the mediation communications
are not confidential or that all or part of the mediation communications may be
disclosed and may be introduced into evidence in a subsequent proceeding unless
the substance of the communication is confidential, privileged or otherwise prohibited
from disclosure under state or federal law.

(f) A party
to the mediation may disclose confidential mediation communications to a person
if the party’s communication with that person is privileged under ORS chapter
40 or other provision of law. A party to the mediation may disclose confidential
mediation communications to a person for the purpose of obtaining advice concerning
the subject matter of the mediation, if all the parties agree.

(g) An employee
of the agency may disclose confidential mediation communications to another agency
employee so long as the disclosure is necessary to conduct authorized activities
of the agency. An employee receiving a confidential mediation communication under
this subsection is bound by the same confidentiality requirements as apply to the
parties to the mediation.

(h) A written
mediation communication may be disclosed or introduced as evidence in a subsequent
proceeding at the discretion of the party who prepared the communication so long
as the communication is not otherwise confidential under state or federal law and
does not contain confidential information from the mediator or another party who
does not agree to the disclosure.

(i) In any
proceeding to enforce, modify or set aside a mediation agreement, a party to the
mediation may disclose mediation communications and such communications may be introduced
as evidence to the extent necessary to prosecute or defend the matter. At the request
of a party, the court may seal any part of the record of the proceeding to prevent
further disclosure of mediation communications or agreements to persons other than
the parties to the agreement.

(j) In an
action for damages or other relief between a party to the mediation and a mediator
or mediation program, mediation communications are not confidential and may be disclosed
and may be introduced as evidence to the extent necessary to prosecute or defend
the matter. At the request of a party, the court may seal any part of the record
of the proceeding to prevent further disclosure of the mediation communications
or agreements.

(k) When
a mediation is conducted as part of the negotiation of a collective bargaining agreement,
the following mediation communications are not confidential and such communications
may be introduced into evidence in a subsequent administrative, judicial or arbitration
proceeding:

(A) A request
for mediation, or

(B) A communication
from the Employment Relations Board Conciliation Service establishing the time and
place of mediation, or

(C) A final
offer submitted by the parties to the mediator pursuant to ORS 243.712, or

(D) A strike
notice submitted to the Employment Relations Board.

(l) To the
extent a mediation communication contains information the substance of which is
required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that
portion of the communication may be disclosed as required by statute.

(m) Written
mediation communications prepared by or for the agency or its attorney are not confidential
and may be disclosed and may be introduced as evidence in any subsequent administrative,
judicial or arbitration proceeding to the extent the communication does not contain
confidential information from the mediator or another party, except for those written
mediation communications that are:

(A) Attorney
client privileged communications so long as they have been disclosed to no one other
than the mediator in the course of the mediation or to persons as to whom disclosure
of the communication would not waive the privilege, or

(B) Attorney
work product prepared in anticipation of litigation or for trial, or

(C) Prepared
exclusively for the mediator or in a caucus session and not given to another party
in the mediation other than a state agency, or

(D) Prepared
in response to the written request of the mediator for specific documents or information
and given to another party in the mediation, or

(E) Settlement
concepts or proposals, shared with the mediator or other parties.

(n) A mediation
communication made to the agency may be disclosed and may be admitted into evidence
to the extent the Oregon Housing and Community Services Director or designee determines
that disclosure of the communication is necessary to prevent or mitigate a serious
danger to the public’s health or safety, and the communication is not otherwise
confidential or privileged under state or federal law.

(o) The terms
of any mediation agreement are not confidential and may be introduced as evidence
in a subsequent proceeding, except to the extent the terms of the agreement are
exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms
to be confidential under ORS 17.095 or state or federal law requires the terms to
be confidential.

(p) In any
mediation in a case that that has been filed in court or when a public body’s
role in a mediation is solely to make mediation available to the parties the mediator
may report the disposition of the mediation to that public body or court at the
conclusion of the mediation so long as the report does not disclose specific confidential
mediation communications. The agency conducting the mediation or making the mediation
available or the mediator may use or disclose confidential mediation communications
for research, training or educational purposes, subject to the provisions of ORS
36.232(4).

(10) When
a mediation is subject to section (7) of this rule, the agency will provide to all
parties to the mediation and the mediator a copy of this rule or a citation to the
rule and an explanation of where a copy of the rule may be obtained. Violation of
this provision does not waive confidentiality or inadmissibility.

(1) This rule applies
to workplace interpersonal disputes, which are disputes involving the interpersonal
relationships between this agency’s employees, officials or employees and
officials. This rule does not apply to disputes involving the negotiation of labor
contracts or matters about which a tort claim notice or a lawsuit has been filed.

(2) The words
and phrases used in this rule have the same meaning as given to them in ORS 36.110
and 36.234.

(3) Nothing
in this rule affects any confidentiality created by other law.

(4) To the
extent mediation communications would otherwise be compromise negotiations under
ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as
provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary
in section (9) of this rule.

(5) Disclosures
by Mediator. A mediator may not disclose or be compelled to disclose mediation communications
in a mediation and, if disclosed, such communications may not be introduced into
evidence in any subsequent administrative, judicial or arbitration proceeding unless:

(a) All the
parties to the mediation and the mediator agree in writing to the disclosure; or

(b) The mediation
communication may be disclosed or introduced into evidence in a subsequent proceeding
as provided in subsections (c) or (h)-(j) of section (7) of this rule; or

(6) Confidentiality
and Inadmissibility of Mediation Communications. Except as provided in section (7)
of this rule, mediation communications in mediations involving workplace interpersonal
disputes are confidential and may not be disclosed to any other person, are not
admissible in any subsequent administrative, judicial or arbitration proceeding
and may not be disclosed during testimony in, or during any discovery conducted
as part of a subsequent proceeding, or introduced into evidence by the parties or
the mediator in any subsequent proceeding so long as:

(a) The parties
to the mediation and the agency have agreed in writing to the confidentiality of
the mediation, and;

(b) The person
agreeing to the confidentiality of the mediation on behalf of the agency:

(A) Is neither
a party to the dispute nor the mediator, and

(B) Is designated
by the agency to authorize confidentiality for the mediation, and

(C) Is at
the same or higher level in the agency than any of the parties to the mediation
or who is a person with responsibility for human resources or personnel matters
in the agency, unless the agency head or member of the governing board is one of
the persons involved in the interpersonal dispute, in which case the Governor or
the Governor’s designee.

(7) Exceptions
to confidentiality and inadmissibility.

(a) Any statements,
memoranda, work products, documents and other materials, otherwise subject to discovery
that were not prepared specifically for use in the mediation are not confidential
and may be disclosed or introduced into evidence in a subsequent proceeding.

(b) Any mediation
communications that are public records, as defined in ORS 192.410(4), and were not
specifically prepared for use in the mediation are not confidential and may be disclosed
or introduced into evidence in a subsequent proceeding unless the substance of the
communication is confidential or privileged under state or federal law.

(c) A mediation
communication is not confidential and may be disclosed by any person receiving the
communication to the extent that person reasonably believes that disclosing the
communication is necessary to prevent the commission of a crime that is likely to
result in death or bodily injury to any person. A mediation communication is not
confidential and may be disclosed in a subsequent proceeding to the extent its disclosure
may further the investigation or prosecution of a felony crime involving physical
violence to a person.

(d) The parties
to the mediation may agree in writing that all or part of the mediation communications
are not confidential or that all or part of the mediation communications may be
disclosed and may be introduced into evidence in a subsequent proceeding unless
the substance of the communication is confidential, privileged or otherwise prohibited
from disclosure under state or federal law.

(e) A party
to the mediation may disclose confidential mediation communications to a person
if the party’s communication with that person is privileged under ORS chapter
40 or other provision of law. A party to the mediation may disclose confidential
mediation communications to a person for the purpose of obtaining advice concerning
the subject matter of the mediation, if all the parties agree.

(f) A written
mediation communication may be disclosed or introduced as evidence in a subsequent
proceeding at the discretion of the party who prepared the communication so long
as the communication is not otherwise confidential under state or federal law and
does not contain confidential information from the mediator or another party who
does not agree to the disclosure.

(g) In any
proceeding to enforce, modify or set aside a mediation agreement, a party to the
mediation may disclose mediation communications and such communications may be introduced
as evidence to the extent necessary to prosecute or defend the matter. At the request
of a party, the court may seal any part of the record of the proceeding to prevent
further disclosure of mediation communications or agreements to persons other than
the parties to the agreement.

(h) In an
action for damages or other relief between a party to the mediation and a mediator
or mediation program, mediation communications are not confidential and may be disclosed
and may be introduced as evidence to the extent necessary to prosecute or defend
the matter. At the request of a party, the court may seal any part of the record
of the proceeding to prevent further disclosure of the mediation communications
or agreements

(i) To the
extent a mediation communication contains information the substance of which is
required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that
portion of the communication may be disclosed as required by statute.

(j) The mediator
may report the disposition of a mediation to the agency at the conclusion of the
mediation so long as the report does not disclose specific confidential mediation
communications. The agency or the mediator may use or disclose confidential mediation
communications for research, training or educational purposes, subject to the provisions
of ORS 36.232(4).

(8) The terms
of any agreement arising out of the mediation of a workplace interpersonal dispute
are confidential so long as the parties and the agency so agree in writing. Any
term of an agreement that requires an expenditure of public funds, other than expenditures
of $1,000 or less for employee training, employee counseling or purchases of equipment
that remain the property of the agency, may not be made confidential.

(9) When
a mediation is subject to section (6) of this rule, the agency will provide to all
parties to the mediation and to the mediator a copy of this rule or an explanation
of where a copy of the rule may be obtained. Violation of this provision does not
waive confidentiality or inadmissibility.

Notes1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.